Posted by Krista J. Kesselring, 28 April 2020.
Recent news reports on the high rates of COVID-19 infection amongst people living in prisons and other carceral facilities are sobering, to say the least. The current outbreaks are also depressingly, disturbingly reminiscent of some from centuries past. While a few commentators on the outbreaks today seem disposed to leave prisoners to their fates, what might well prompt action is a recognition that what happens in prison does not stay in prison. If concern for the health and safety of the people incarcerated proves inadequate, one might at least reflect on the prison workers who travel in and out. Prisons are permeable, in all sorts of ways.
A recent piece by Ashley Rubin in The Conversation reflected on the history of prisons, noting the late eighteenth-century reforming efforts of men such as John Howard to improve sanitation and to prevent outbreaks of typhus, or ‘gaol fever’. Some of the prisons now incubating clusters of infections were designed, in part, to stop the spread of disease amongst prisoners and then onwards to the communities in which they resided. Howard and others invoked notorious episodes in which outbreaks in the gaols broke out beyond the walls to help secure support for their efforts.
The ‘Black Assize’ at Oxford in 1577 receives frequent mention in such surveys of disease outbreaks from squalid gaols. In early July, the travelling justices arrived from Westminster to hold the trials of prisoners then awaiting their moment in court. Within days, however, the two judges, the sheriff, the county coroner, and many others sickened and died. The University shut for a time and in Oxford hundreds fell ill. One hundred or more of the scholars died, ‘besides townsmen not a few’—contemporary estimates suggested a death toll of at least 300 people. Rival interpretations of the episode soon emerged. Some people attributed the devastation to one Rowland Jenks, a Catholic bookbinder on trial for seditious speech. Some thought he had cursed the gathering or concocted a poisonous vapour; some of his fellow Catholics, in contrast, thought the pestilence the providential punishment of God for the injustices inflicted upon Jenks. While the talk of providence, ‘papistical depravity’, or magical curses helped ensure this story a particular salience—and the curse continues to be cited in the tourist attraction built up around the Oxford Castle and Prison complex today—others at the time attributed the spate of deaths to an illness brought into the court by the prisoners from their fetid gaol. Such was the interpretation later picked up by John Howard. Frederick Pollard, too, writing in the late 1800s, abstracted from the tale the moral that keeping prisoners in overcrowded, unsanitary conditions menaced the health of society at large—though he also, somewhat surprisingly, congratulated his countrymen that ‘From that time, improvements steadily continued, until now our prisons are perhaps the healthiest dwellings in the kingdom.’[1]
‘Perhaps’ does a lot of heavy lifting in that last sentence. The stories we tell about contagion have consequences, as Priscilla Wald reminds us: ‘As they disseminate information, they affect survival rates and contagion routes. They upset economies. They promote or mitigate the stigmatizing of individuals, groups, locales, behaviours, and lifestyles.’ Communicable diseases are functions of social interactions and get communicated, in part, through the ‘outbreak narratives’ we construct.[2] In the short term, some stories told about Oxford’s ‘Black Assize’ fed into religious bigotries; eventually, others helped contribute to prison reforms.
One other sixteenth-century ‘black assize’ gets less notice in popular accounts—it lacks the whiff of witchcraft and cursing Catholics to help jolly up the tale—but is interesting in that it did produce at least some contemporary calls to better prisoners’ lots. The assizes held in Exeter in May 1586 also saw pestilence come out of the gaol along with the prisoners to be tried. John Hooker, the city’s member of parliament and historian, left an account of the outbreak a few months after it began—an account copied below. Like those who told the tale of the Oxford outbreak, Hooker saw the significance of the story lying partly in the status of some of the victims, with great men felled by poor prisoners.[3] But he also noted that the presiding judge, seeing the condition of the prisoners, ordered that the gaols thereafter be emptied for trials more frequently, rather than having the prisoners await the assizes held only twice a year.
Hooker ended his account by bemoaning the fact that amendments once made do not always persist. While he was referring to the transience of repentance for sin, it is a lesson to be learned about improvements more generally, made in the heat of a moment and too often thereafter allowed to slip. One can hope that the current crisis provokes reforms to prisons and carceral policies that might last rather longer.
Hooker’s narrative of the Exeter outbreak, from Holinshed’s Chronicles (1587), pp. 1547-8:
‘At the assizes kept at the city of Exeter the fourteenth day of May, in the eight and twentieth year of Her Majesty’s reign [1586], before Sir Edmund Anderson, knight, lord chief justice of the Common Pleas, and sergeant Flowerdew, one of the barons of the Exchequer, justices of the assizes in the county of Devon and Exeter, there happened a very sudden and strange sickness, first among the prisoners of the gaol and castle of Exeter and then dispersed (upon their trial) amongst sundry other persons, which was not much unlike to the sickness that of late years happened at an assize held at Oxford, before Sir Robert Bell, knight, lord chief baron of the Exchequer and justice then of that assize…
The origin and cause thereof, diverse men are of diverse judgement. Some did impute it and were of the mind that it proceeded from the contagion of the gaol, which by reason of the close air and filthy stink, the prisoners newly come out of a fresh air into the same are in short time for the most part infected therewith, and this is commonly called the gaol sickness, and many die thereof. Some did impute it to certain Portuguese, then prisoners in the said gaol. For not long before, one Barnard Drake, esq., (afterwards dubbed knight) had been at the seas and meeting with certain Portuguese come from Newfoundland and laden with fish, he took them as a good prize and brought them into Dartmouth haven in England, and from thence they were sent, being in number about 38 persons, unto the gaol and castle of Exeter and there were cast into the deep pit and stinking dungeon.
These men had been before a long time at the seas and had no change of apparel nor lain in bed, and now lying upon the ground without succor or relief were soon infected, and all for the most part were sick and some of them died, and some one of them was distracted. This sickness very soon after dispersed itself among all the residue of the prisoners of the gaol, of which disease many of them died, but all brought into great extremities and were hardly escaped. These men, when they were to be brought before the foresaid justices for their trial, many of them were so weak and sick that they were not able to go nor stand, but were carried from the gaol to the place of judgement, some upon hand barrows and some between men leading them, and so brought to the place of justice.
The sight of these men’s miserable and pitiful cases, being thought (and more likely) to be hunger-starved than with sickness diseased, moved many a man’s heart to behold and look upon them. But none pitied them more than the lords justices themselves, and especially the lord chief justice himself, who upon this occasion took a better order for keeping all prisoners thenceforth in the gaol and for the more often trials, which was now appointed to be quarterly kept at every quarter sessions and not to be posted any more over, as in times past, until the assizes [which met only twice a year].
These prisoners thus brought from out of the gaol to the judgement place, after that they had been stayed and paused a while in the open air, and somewhat refreshed therewith, they were brought into the house, in the one end of the hall near to the judges’ seat and which is the ordinary and accustomable place where they do stand to their trials and arraignments.
And howsoever the matter fell out, and by what occasion it happened, an infection followed upon many and a great number of such as were there in the court and especially on such as were nearest to them were soonest infected. And albeit the infection was not then perceived, because every man departed (as he thought) in as good health as he came thither, yet the same by little and little so crept into such as upon whom the infection was seasoned, that after a few days and at their homecoming to their own houses, they felt the violence of this pestilent sickness, wherein more died that were infected than escaped. Any besides the prisoners, many there were of good account and of all other degrees which died thereof, as by name Sergeant Flowerdew, who then was the judge of those trials upon the prisoners, Sir John Chichester, Sir Arthur Basset, and Sir Barnard Drake, knights; Thomas Carew of Haccombe, Robert Carie of Cloveleigh, John Fortescue of Wood, John Waldrom of Bradfeld, and Thomas Risdone, esquires and justices of the peace.
The loss of every one them was very great to the commonwealth of that province and country…The more worthy were these personages, the greater loss was their deaths to the whole commonwealth of that country. Of the plebeian and common people died very many, and especially constables, reeves, and tithing men and such as were jurors, and namely one jury of twelve, of which there died eleven.
This sickness was dispersed throughout all the whole shire, and at the writing hereof in the 5 of October, 1586, it is not altogether extinguished. It rests for the most part about fourteen days and upwards by a secret infection before it break out unto his force and violence. At the first coming, it made the people afraid and dismayed, many men then pretending rather than performing the amendment of life. So long as the plague was hot and fervent, so long every man was holy and repentant; but with the slaking of the one followed the forgetfulness of the other, even as it is with a company of shrewd children, who so long as the rod is over the head, so long fear of correction frames them to aptness, conformity, and obedience.’
Feature image: Map of Exeter, from Georg Braun and Frans Hogenberg, Civitates Orbis Terrarum (1617), courtesy Wikimedia Commons.
Picture of the Oxford ‘Black Assize Plaque’, also courtesy Wikimedia Commons.
Notes:
[1] Frederick Pollard, ‘The Black Assize at Oxford in 1577’, The Antiquary 13 (1886), 49-54 at 54. For the Black Assize, see also Charles Creighton, A History of Epidemics in Britain (1891).
[2] Priscilla Wald, Contagious: Cultures, Carriers, and the Outbreak Narrative (Durham, N.C., 2007), cover and p.3.
[3] For an analysis of stories about the Oxford ‘Black Assizes’ and similar ‘cautionary tales’ in which the status of victims invests outbreak narratives with ‘imaginative force’, see Kevin Siena, Rotten Bodies: Class and Contagion in Eighteenth-Century Britain (New Haven, 2019).
Legal History Miscellany 